카메라 등 이용 촬영죄의 기수시기 : 대법원 2011.6.9. 선고 2010도10677판결,공2011,1420

문성도(Mun Seong-Do) 숭실대학교 법학연구소 2012 法學論叢 Vol.27 No.-

Article 13 paragraph ① of Korean Act on Special Cases concerning the Punishment, etc. of Sexual Crimes says as follows : Article 13 (Taking Pictures by Camera etc) ① A person who takes a picture of another's body which provokes people's sexual desires and causes the public to feel shame using a camera or other a similar equipment, or who distributes, sells, lends, openly displays or shows the taken pictures, shall be punished by imprisonment for not more than five years or by a fine not exceeding thirty million won. Recently Korean Supreme Court ruled in the criminal case where a man pushed into a woman's mini skirts to take moving pictures and stopped to take pictures without pushing the button to save the pictures in the photo album when a policeman just observed the crime on the crime scene, the crime of taking pictures by camera etc had been committed completely. So to speak, the Supreme Court said that crime didn't stopped only in the stage of attempted crime but got to the stage of consummated crime when data of pictures saved in the RAM(random access memory) not in the auxiliary memory unit like a hard disc drive or a USB memory card. This review comments on this Supreme Court's judgement from the viewpoint of the hermeneutics. In this review firstly is examined how this article was legislated in 1998 and developed since then. Then is reviewed what benefits this provision protects, and what factors must be to constitute the consummated crime perfectly. Lastly, is discussed whether this judicial judgement on consummated crime of taking pictures by camera etc is right or not.

주취자에 대한 경찰조치의 실태와 문제점 -주취자에 의한 법의침해 실태와 법적 대응을 중심으로-

문성도 ( Seong Do Mun ) 한국경찰법학회 2009 경찰법연구 Vol.7 No.2

Recently several crimes under influence of alcohol sent shock waves through the nation in Korea. Over-drinking might cause not only various health problems but also serious crimes. The Korea Super Prosecutor`s Office`s Analytical Report on Crime 2009 indicates that 17.9% of Crimes, especially 36.3% of murder, 48.6% of arson, 31.6% of rape, 33.9% of violence, 61.0% of unlawful interference with an officer in the execution of his duty were committed under influence of alcohol. In this review firstly is examined how much alcohol have a detrimental effect on crime and how much heavily drunken people do harm other people in our society and police officers in the police box. Most psychological research literatures support that alcohol may be associated with a variety of criminal offenses, especially murders and violent offenses. The Korea Super Prosecutor`s Office`s Analytical Report on Crime 2009 also indicates reflects similar results. Then is reviewed how police officers, especially in the police box treat heavily drunken people. A police officer who is under obligation to deal with heavily drunken people is lay policeman and lacks in adequate facilities and equipments. Based on this empirical analysis, this study suggests that heavily drunken people should be treated as patient than crimial or potential criminal and that it is necessary to create more systematic and efficient systems to protect and cure heavily drunken people.

음주 폐해 예방과 감소를 위한 경찰 대응과 문제점 -상습주취자 치료,보호 프로그램을 중심으로-

문성도 ( Seong Do Mun ) 한국경찰법학회 2010 경찰법연구 Vol.8 No.2

집회,시위 현장에 대한 경찰 출입의 법적 문제와 합리적 개정방안

문성도 ( Seong Do Mun ) 한국경찰법학회 2008 경찰법연구 Vol.6 No.2

Recently in Korea it is passionately disputed regarding freedom of assembly whether a policeman in civilian clothes can enter a gathering or demonstration place in view of Korean Assembly-Demonstration Code which says ‘a policeman can enter a gathering or demonstration place in a full-dress uniform, after notifying the promotor of an assembly and a demonstration’(§19).This paragraph 1 of Article 19 of Korean Assembly-Demonstration Code can be interpreted variously. According to the restrictive interpretation of §19 ①, a policeman in civilian clothes may not enter a gathering or demonstration place. From the interpretation a contrario of §19 ①, a policeman in civilian clothes can enter a gathering or demonstration place without serving a notice to the promoter of an assembly and a demonstration. From the interpretation a fortiori of §17 ①, a policeman in civilian clothes can enter a gathering or demonstration place, if he serves a notice to the promotor of an assembly and a demonstration. This issue brings several reform bills of Korean Assembly- Demonstration Code. These bills may be classified as follows; - One bill① crosses words of ‘in a full-dress uniform’ out in the paragraph 1 of Article 19. - Another bill② rescinds the paragraph 1 of Article 19. - Other 4 bills③ make that problem clear by saying that `a policeman shall enter a gathering or demonstration place in a full-dress uniform. The second chapter explains about the bill①, and the third chapter reviews the bills③. The fourth chapter explains and reviews the bill②. The bill② seems to solve this problem according to Police-Duty-Enforcing Code, but actually brings many difficult legal problem. Some labor agitators or leaders assume a critical attitude toward the bill①. They think if a policeman enters a gathering or demonstration place in a civilian clothes, he keeps close watch on the people in gathering place like Stalin`s secret police, and freedom of assembly must be violated. According to the bills③ a policeman in civilian clothes may not enter a gathering or demonstration place. Some bills make a policeman mark his rank and name in addition. However, People who submit or support the bills③ don`t understand or make little of why legislators of Korean Assembly-Demonstration Code allow a policeman to enter a gathering or demonstration place. When a peaceful demonstration takes a sudden turn for the worse or riot, an isolated policeman shall not be left behind defenseless or naked. So, I support the bill that a policeman in civilian clothes or a full-dress uniform can enter a gathering or demonstration place, if he serves a notice to the promotor of an assembly and a demonstration.

한국 검경관계 현황 및 전망

문성도(Mun, Seongdo) 한국경찰법학회 2015 경찰법연구 Vol.13 No.2

Under the current Korean Criminal Procedure Act, a public prosecutor is the authoritative body in criminal investigations and entitled to supervise a judicial police official. Any judicial police officer or assistant shall investigate crimes under instructions of a public prosecutor. A public prosecutor belongs to Supreme Prosecutors' Office. On the other hand a judicial police official belongs to National Police Agency or other administrative agency. Most of criminal investigations are made by police officials of National Police Agency. So, there are constant disputes between Supreme Prosecutors' Office and National Police Agency over empowering police with an independent investigative authority in Korea since 1945. This review firstly analyzes how Article 196 of Korean Criminal Procedure Act had been made in 1954 since 1945. Then this review compares Korean Criminal Procedure Act of 1954 with Chinese Criminal Procedure Act of 1935 and looks into the details and the most striking features of the relationship between prosecutors and judicial police officials. Lastly, this review go over the main points of Korean Criminal Procedure Act revised in 2011 and discusses on reasonable relationship between prosecutors and judicial police officials based on most striking features of the relationship between prosecutors and judicial police officials in Chinese Criminal Procedure Act of 1935.

[논문] 영장주의의 비교법적 고찰 - 한국 헌법 제12조 제3항과 미연방헌법 수정 제4조의 규범적 특징을 중심으로 -

문성도(Mun Seong-Do) 한국형사법학회 2005 형사법연구 Vol.24 No.-

The warrant-requirement principle means that arrest, search and seizure shall not be made without presenting the warrant that a judge has issued in the due process on request of a prosecutor except for exigent circumstance or flagrante delicto. Korean warrant-requirement principle has been influenced by American warrant process from the adoption of this principle to now. It was adopted on the basis of the Ordinance No. 176 proclaimed under United States Army Military Government in Korea(March 20, 1948). This study reviews this warrant-requirement principle from the viewpoint of constitutional criminal procedure. It also attempts to trace its original meaning and to reach its understanding by comparing the American and Korean Constitution on the historical interpretation method. The second chapter discusses the problem of general warrant. As to general warrant, American Constitution prescribes explicitly ""no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized."" The third chapter reviews that a warrant is required prior to a search or an arrest. Especially it discusses whether in USA this interpretation is prevailing doctrine. The fourth chapter explains that a warrant must be issued by a judge. it discusses why it is a judge who issues a warrant. The fifth chapter reviews whether it is a fundamental factor that a warrant issued on request of a prosecutor. The sixth chapter explains a warrant shall be presented required prior to a search or an arrest and reviews whether no exceptions may not be allowed by Korean Constitution. The seventh chapter discusses that investigative authorities may request an ex post facto warrant, in case a criminal suspect is apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence.

형법 제34조 제2항의 법적 성질

문성도(Mun Seong-Do) 한국경찰법학회 2006 경찰법연구 Vol.4 No.1

  A man drove under the influence of alcohol, brought about a traffic accident and ran away. He was caught by a policeman and failed the Breathalyzer test. He was suspected to violate the Korean Road Traffic Act.<BR>  His girlfriend asked his personnel to tell a investigator that it was not his employer but he who drove the car that night. He did so in the police station. But, the investigator found out that the personnel told a lie. Then the personnel explained that he be compelled to do so, because she was the girlfriend of his employer and all the employees follow her directions like the employer"s in his company.<BR>  He was suspected to cause one who has committed a crime punishable by fine or more severe punishment to escape and to violate article 150.<BR>  A raised question is whether § 34 ② of Korean Penal Code might be applied to her.<BR>  Article 34 of Korean Penal Code is as follows,<BR>  Article 34 ① A person who commits a crime by instigating or aiding and abetting another who is not punishable for such conduct, or who is punishable as an offender through negligence, shall be punishable in accordance with the provision for an instigator or accessory.<BR>  ② A person who causes the results envisaged in the preceding paragraph by instigating or aiding and abetting another person who is under his control and supervision, shall be punished by increasing one half of the maximum term or maximum amount of penalty provided for the principal in the case of instigating, and with the penalty provided for the principal in the case of aiding and abetting.<BR>  Giving a full detail of raised question, we must review whether he was the person who is under his control and supervision, and what means the results envisaged in the preceding paragraph.<BR>  First of all, this study examined how this paragraph was legislated and developed in Korea and Japan. In this chapter, Origins and original meaning of this paragraph, and Japanese Penal Code"s influence were reviewed.<BR>  Then this study explained and reviewed the viewpoints of other scholars of criminal law in Korea.

2007년 정신보건법 일부개정법률안에 대한 고찰

문성도(Mun, Seong-Do) 한국경찰법학회 2007 경찰법연구 Vol.5 No.1

Mr. Sang-Jin Shin, a member of National Assembly was preparing for laying private member's bill of Mental Health Act before the Congress in June 2007. This review on this bill was written with an emphasis on the forced hospitalization procedure and police officer's agreement at the request of the Legislative Office of the Secretariat of the National Assembly. In this review firstly is examined how the Mental Health Act was legislated in 1995 and developed after that, and what problem and criticism has been raised. Then is reviewed whether the mental disorders may be associated with a variety of criminal offenses, especially violent offenses and murders. Most psychological research literature supported that mentally disordered individuals - even severely mentally disordered - are no more likely to commit serious crimes against others than member of the general population are except for current serious mentally disordered individuals with a history violent behavior. Based on this psychological research, this study suggests legal viewpoint on the Mental Health Act and the forced hospitalization procedure and police officer's agreement. From this normative viewpoint this study remarks on the reform bill of Mental Health Act 2007 with an emphasis on the forced hospitalization procedure and police officer's agreement.

2007년 긴급체포제도 개정의 법적 의의

문성도(Mun, Seong-Do) 한국경찰법학회 2007 경찰법연구 Vol.5 No.2

Few legal problems evoke more passionate debate about the balance between prerogatives of the government and the liberty of the individual than the warrant-requirement principle and exigent arrest system in Korea. The Korean Constitution says that warrants shall be issued in case of arrest, custody, search or seizure, but in case a criminal suspect is apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant.(ROK. Const. XII ③) The korean Criminal Procedure Act says that where there is no time that arrest warrant can be issued by a judge and danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may make an exigent arrest and request an ex post facto custody warrant. Investigative authorities don't arrest warrant, much less request an ex post facto custody warrant where they release arrestee within 48 hours. Many people have insisted that this exigent arrest system violate the Constitution since this system was established newly in 1995. Many people have insisted and rebuked that investigative authorities was making an improper use of their exigent arrest power. With a view to solving these problem, Criminal Procedure Act 2007 provided that investigative authorities shall request an ex post facto custody warrant within 48 hours where they make an exigent arrest, and notify a local court of why they did that. This reform result from the Reform Bill on Criminal Procedure Act by the Presidential Committee on Judicial Reform. In this review is examined how this Reform Bill was established in 2005, whether it solved many legal problems raised, and what are their legal meanings.

집회,시위에 대한 촬영의 법리

문성도 ( Seong Do Mun ) 한국경찰법학회 2005 경찰법연구 Vol.3 No.1